Should Government Get Out Of Marriage Business?

Should we abandon the notion of civil marriage? Would doing so end the clash over homosexual unions?

Denver Post columnist David Harsanyi touts an idea that’s been gaining some steam as the argument over gay marriage heats up:  “isn’t it about time we freed marriage from the state?”

Imagine if government had no interest in the definition of marriage. Individuals could commit to each other, head to the local priest or rabbi or shaman — or no one at all — and enter into contractual agreements, call their blissful union whatever they felt it should be called and go about the business of their lives.

While we’re at it, imagine there’s no Heaven, no countries, no possessions, and all the people sharing all the world!

I certainly don’t believe that gay marriage will trigger societal instability or undermine traditional marriage — we already have that covered — but mostly I believe your private relationships are none of my business. And without any government role in the institution, it wouldn’t be the business of the 9th Circuit Court, either.

As the debate stands now, we have two activist groups trying to force their own ethical construction of marriage on the rest of us. And to enforce it, they have been using the power of the state — one via majority rule and the other using the judiciary (subject to change with the vagaries of public opinion).

GayPatriot‘s B. Daniel Blatt likes the idea:

Harsanyi noted that even Associate Supreme Court Justice Elena Kagan, who bent over backwards to appease gay groups at Harvard Law School, “recently wrote that ‘There is no federal constitutional right to same-sex marriage.’”  She’s right on that one.

Nothing in the constitution mandates that the states recognize same-sex marriage.  By the same token, nothing in the constitution requires that courts overturn state actions recognizing same-sex marriage.  Indeed, it’s pretty clear that the constitution protects such actions.

All that said, Harsanyi is on to something.  We could avoid all these battles if the state simply removed itself from the business of marriage.

Jeff Goldstein demurs:

Well, there’s that and the thousands of years of precedent about what marriage is and what it isn’t — but to certain libertarians, that’s to be casually tossed aside as “none of their business.”

I disagree. The state has certain reasons to promote certain behaviors — and marriage traditionally understood, though it doesn’t always culminate in new citizens, taxpayers, etc., does at least form the basis for a family structure that historically (and biologically) best serves children.

The point being that the state’s involvement in marriage is only a problem when the courts begin making pronouncements that marriage, as it has long been defined, is itself a kind of arbitrary and illegitimate exercise — that “gender” shouldn’t matter in the makeup of the coupling that comes to count as “marriage”.

We opened Thursday’s OTB Radio with a longish discussion of Walker’s ruling and touched on this idea a bit.   Dave Schuler argued that, if the definition of “marriage” is expanded beyond traditional definitions, we should drop it as a civil institution altogether and make it the province of churches.   Doug Mataconis thinks it a good idea, generally.

When the idea was first being batted around several years ago, I favored it.  Now, I’m not so sure.

In a classic case of Where you stand is where you sit, I’ve married and had a child in the interim.   And it’s clear to me that we need the convenience of an institution like marriage and its various legal protections for partners and their children.

Now, I suppose we could replace it with a set of complicated contracts:  wills, powers of attorney, adoptions, and so forth.  But that would be much more burdensome than a single legal act that solves the issues.  And there’s always the chance of sudden death that puts things into legal limbo before the parties would have an opportunity to execute a particular contract.  Say, one parent dies during childbirth or just before.  Now, custody is a non-issue if the couple is married.   If the parents were in a mere business relationship consecrated by a series of contracts, it would be murkier and require legal wrangling at a particularly emotional time.

Presumably, all of that’s solvable.   But, essentially, you’d be re-creating civil marriage under another name.   Which seems rather pointless, since we already have it.

Unless, of course, the sacramental nature of the word “marriage” is truly what the gay marriage debate is about.  Would the objections melt away if we simply started having civil unions — or whatever you want to name the institution — rather than “marriage” for all couples, regardless of gender combination.    I seriously doubt it. The subset of Americans who enthusiastically support same-sex relationships but merely object to the word “marriage” on religious grounds is small, indeed.

FILED UNDER: *FEATURED, Government, Law and the Courts
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. john personna says:

    Apparently all we need to do is give churches the word “marriage” and give the government a replacement.  “divorce” would  be relative to the replacement term.

  2. PD Shaw says:

    I have vacillated on this point.  When I read a list of benefits (and obligations) given to married couples by the government with the assumption of child-bearing and child-raising and then see that they apply to hetero-sexual couples without children and not same-sex couples with children, the system isn’t working properly.

    OTOH, marriage has never been treated as a contract; it’s an institution.

  3. TJ Parker says:

    You guys are very funny. Here’s an idea: Let’s get the FEDERAL government out of the marriage business, as was the case before DOMA. And by this I mean, let’s repeal DOMA. When I see you folks seriously arguing that point, I’ll believe that you’re serious. But until I see that obvious first step, I can’t see your thesis as anything more than a “cut off your nose to spite your face” solution to a deep loathing of gay and lesbian families being recognized as equals of their heterosexual counterparts.
    Beyond all this, there is still the issue of what substitutes for “marriage” in numerous laws determining familial and spousal rights and responsibilities, tax benefits, and the like.  GLBT folks would say that we need some designation which is purely descriptive: this is a family, this is not a family, this is a committed couple, this is not a committed couple. Its always the religious types who want their religion to make this standard something proscriptive. Walker hit the nail on the head: GLBT couples are “not as good as” heterosexual ones.

  4. Tano says:

    ‘The subset of Americans who enthusiastically support same-sex relationships but merely object to the word “marriage” on religious grounds is small, indeed.”
     
    Really? Well, except for the word “enthusiastically”,,,,I have found that, aside from religious extremists, this is actually by far the most common position amongst those opposed to gay marriage – i.e. they are supportive of granting all the legal rights and responsibilities of a “civil union”, but balk at the term (they see it more as the concept, rather than just the word) of marriage.

  5. repsac3 says:

    Harsanyi’s idea about taking the state completely out of the unions between people is unworkable, but I’ve long supported a divorce of the religious rite of marriage and the legal right for people to form couples and families. When the definition of marriage is held by one’s faith–as it was meant to be, IMHO–the state can better define the legalities involved in property rights, protection of children, privacy, and all the rest that comes with legal couplehood. While I agree that such a change wouldn’t end objection to “gay marriage,” I think it would clarify where the objections are coming from, calm the fears of those who believe the gays will attack churches with discrimination suits and loss of tax breaks, should they be granted their right to legally “marry,” as well as clarify the equal protection arguments of same sex marriage supporters.

    To PD Shaw’s point, I recently read somewhere (perhaps among the comments at the Harsanyi piece, in fact) the idea of attaching benefits (and responsibilities) to children and to legal guardianship, rather than to marital status. There is no reason that a childless married couple should receive benefits meant to encourage child-rearing, and a committed gay couple actually raising children should not. (Of course I also support lower school taxes for those who don’t have children in school, as well. We all benefit from having a new generation of educated Americans following us up, but those with kids attending benefit more, short term.)

    So yeah… Legal civil unions for consenting adults who want that, and marriage–including gay marriage, if that be a part of the belief system (Unitarian Universalists like me, for one)–from one’s church. State recognition of church rites (and vice versa, I suppose) optional, as long as married couples are recognized/not recognized equally.

  6. steve says:

    Make every marriage a civil union, covering the same legal rights. Those so inclined, could still obtain a religious marriage if they wanted to be recognized by their church as married.
     
    Steve

  7. sam says:

    Whenever I’ve thought of getting the government out of the marriage business, I’ve always thought of getting it out of the marriage licensing business. Would it be all that difficult to have a standard Contract of Marriage or Declaration of Marriage that the marrying parties would sign in front of notary? Is there some conceptual problem with this kind of scheme?

  8. sam says:

    @PD

    OTOH, marriage has never been treated as a contract; it’s an institution.

    Funny, then, that it’s a institution that requires a judicial finding to dissolve.

  9. G.A.Phillips says:

    ***Really? Well, except for the word “enthusiastically”,,,,I have found that, aside from religious extremists, this is actually by far the most common position amongst those opposed to gay marriage – i.e. they are supportive of granting all the legal rights and responsibilities of a “civil union”, but balk at the term (they see it more as the concept, rather than just the word) of marriage.***

    pretty much how I feel…..

    ***Make every marriage a civil union, covering the same legal rights. Those so inclined, could still obtain a religious marriage if they wanted to be recognized by their church as married.***

    lol, Does someone here always have to bring the Communism!!!!!!

  10. Christian Miller says:

    Forget about gays. What is the government trying to accomplish with its marriage laws related to heterosexual couples? It is a way for the government to give money and privileges to people with marriage licenses that it does not give to people without marriage licenses. Why? As an incentive for couples to get marriage licenses? Why? Because people will not fall in love, live together and make babies without marriage licenses? Not likely. To help out people with marriage licenses? Why should a rich couple with a marriage license get money from the government when a poor couple without a marriage license gets nothing?

  11. floyd says:

    “”a poor couple without a marriage license gets nothing””

     Mr. miller;
     Are you aware of how many “single moms” get everything from welfare, to WIC , to housing subsidies, etc. while the “baby daddy” is out trading their food stamps for booze and cigarette money?
    Maybe it’s time to rethink your position.  

  12. floyd says:

    “”I have found that, aside from religious extremists, this is actually by far the most common position “”
    “”””””””””””””””””””””””””””””””””””””
     Tano;
     Notice it was your own “finding” that those who differ from your fantasy of public  opinion are of course “religious extremists”.
     All very convenient, you get to bolster your position and marginalize those who disagree, all on just your “findings.”
    Well, that’s probably about as good as some of those university funded studies and polls which set out to prove a point, instaed of searching for the truth.
     

  13. Christian Miller says:

    Floyd, You correctly point out a gross misstatement on my part. Our government certainly pays out a great deal of money for poor people. I should have said that government money should be based on need rather than marital status. For example, my wife did not qualify for of Social Security on her own, but we collect an extra $9,000 a year from Social Security only because we have a government marriage license. Another retired couple, where the wife did not qualify on her own, that raised children and lived together in a committed relationship for 40 years without a government marriage license would not get that an extra $9,000 per year from Social Security even though they may need it more. Great for us, not great for them.

  14. floyd says:

    Mr. Miller;
       Actually;The claim of common law marriage is usually valid after seven years and can be used to make the claim to his social security, with little documentation.

  15. floyd says:

    Mr. Miller;
       Actually;The claim of common law marriage is usually valid after seven years in most states and can be used to make the claim to his social security, with little documentation.

  16. floyd says:

    slow computer…. please pardon the redundancy

  17. Christian Miller says:

    Floyd, My understanding is that Social Security only recognizes common law marriage in those nine states that recognize it ( Alabama, Colorado, Kansas, Rhode Island, South Carolina, Iowa, Montana, Oklahoma, and Texas).  Or just consider an older person living alone that is not covered by social security.
    The larger question is why do you think the government gives money to married people that it does not give to single people?

  18. floyd says:

     The larger question is why do you think the government gives money to married people that it does not give to single people?

    Mr. Miller;
     
     Insurance benefits are really not a given, Social Security Insurance is  a mandatory insurance program.
     The Marriage penalty actually punishes married individuals in certain tax brackets.
     

     To answer the above question…. I don’t.

     

  19. Christian Miller says:

    Floyd, If you do not think that the government provides exclusive financial benefits to people with government marriage licenses, what do you think government’s purpose is being in the marriage business?

  20. floyd says:

    Mr. Miller;
     The family is the irreducible element of human social structure,  Any government which denies that fact, embraces peril to it’s existence.

  21. Christian Miller says:

    Floyd, I agree with you that “The family is the irreducible element of human social structure.” Family and marriage can be wonderful. My observation is that people can have wonderful marriages and form great families without involvement of the government. I cannot see where government involvement furthers a goal of fostering strong families.

  22. floyd says:

    “I cannot see where government involvement furthers a goal of fostering strong families.”

     Mr. Miller;
    It is simply a fact of modern life that government has insinuated itself into every aspect of life in these United States.
    Perhaps the explanation for the above quote rests in the fact that our government declared war on the family some time ago and any support is simply residual.

    Remember that I said…
    The family is the irreducible element of human social structure, any government which denies that fact, embraces peril to it’s existence.
    The second part of that sentence is as salient a point as the first for your consideration.
    The effect is “progressively” manifest. 

  23. Christian Miller says:

    Floyd, I am afraid you have lost me. Where do you stand on the original question? Do you think government should stay in or get out of the marriage business?

  24. floyd says:

    I submit that the government is not capable of being “in or out” of the marriage business? As I said before… It’s outside government’s purview.

     It should however be in the business of supporting and recognizing that which is the very foundation of it’s standing….. You can’t build a second floor on an empty lot.
     

  25. James says:

    I guess I’m not up to speed on the legal privlage, when my Children reached the age of 21. The tax benefits left when they left. So the argument about childless couple is mute ? We all become child less couples for tax purposes 🙂